HKSAR v. MUGHAL ZIA UR REHMAN AND ANOTHER

DCCC 169/2019

[2019] HKDC 1603

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 169 OF 2019

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendants, Mr Mughal and Mr Waseem, have pleaded guilty to a single charge of attempted burglary. It was a joint enterprise burglary on 23rd November at a premises in Temple Street, Yau Ma Tei.

2.  The facts have been agreed, are straightforward. The witness was living in a flat on the top floor of an old tenement building in Temple Street.  Opposite was an empty flat.  It had been empty since 2006, so been empty for some 13 years.

3.  What the witness saw was the two defendants outside the premises, trying to enter it by using a crowbar and umbrella, and some of their conduct was recorded through the spyhole by a mobile phone, which allowed identification to be made of the defendants later on.

4.  The defendants were eventually arrested on the roof of the building, arrested and cautioned.  They subsequently admitted their role and their attempt to burglarise, I think is the expression, the relevant premises.

5.  The defendants are aged 39 and 45 respectively. I am told they are both Form 8 holders, both of them originating from Pakistan by birth.  They have come to Hong Kong obviously seeking a better life.  I am told the 2nd defendant has married a local woman, but his Immigration status has not yet been altered.

6.  Both defendants have some criminal convictions. I see none of them are relevant in respect of these proceedings.

7.  The defendants have both pleaded guilty to attempted burglary in respect of a domestic premises.  The normal starting point for sentence in relation to an offence of that nature would be 36 months’ imprisonment.  It has been pointed out to me that the starting point is only a guideline and that the courts have in the past taken a different approach between what were vacated residential buildings and buildings that had no people & who were living in them or were likely to return to those premises.

8.  In this case, the premises had not been lived in for some 13 years.  It was unlikely that anyone would be encountered and, in that position, the courts have allowed starting points to vary from the normal 3-year starting point down to figures below 2 years.

9.  I do bear in mind that this is a joint enterprise burglary and that in itself is an aggravating factor in respect of burglaries.

10.  However, in respect of both defendants, I do not believe, having regard to the nature of the premises, that the starting point for them in respect of this case, should exceed 21 months.

11.  There is an aggravating factor in respect of the fact that both defendants are Form 8 holders.  I do not propose to go through the cases that justify that as an aggravating factor, but what I shall do is add a figure of 3 months to that existing starting point, to reach a starting point now of 24 months’ imprisonment for both defendants.

12.  Both defendants are entitled to a discount for their plea of guilty. 

13.  The 1st defendant has pleaded guilty before trial or indicated a plea of guilty before trial, but after the matter was put down in the District Court.  I consider his discount should be one of 25 per cent.  By my calculations, that would lead to a final sentence of 18 months’ imprisonment.

14.  The 2nd defendant has pleaded guilty at the beginning of trial and so he would normally be entitled to a discount of only 20 per cent.  In order to arrive at a round figure, I have set a discount of somewhere between 20 to 25 per cent, which will lead to a deduction of 5 months’ imprisonment from the starting point, which means the 2nd defendant’s sentence will be one of 19 months’ imprisonment.

15.  Those are the sentences of the court.